Editor's Note :

We are expecting one or more decisions in argued cases tomorrow at 10 a.m. We will be live-blogging the opinion(s) as they are released. However, there is no live blog of tomorrow’s oral argument in King v. Burwell. We will have coverage of that argument as soon as possible after it is finished; the transcript should be available tomorrow afternoon, and the audio will be available on Friday. Wednesday's live blog will be available here.

Analysis: Some expansion of student privacy

Posted Thu, June 25th, 2009 1:03 pm by Lyle Denniston

Analysis

Sending new constitutional instructions to public school officials on how far they may go to search students for drugs or other harmful items, the Supreme Court has set two limits: one mostly unchanged from before, and one new. The new rule is that searching students’ inner clothing, resulting in exposure of their bodies, will be extremely difficult — though not impossible — to justify under the Constitution.

That is the meaning of the somewhat opaque language that Justice David H. Souter, writing for an 8-1 majority, used to deal with the constitutionality of “strip searches” of students in public schools. The ruling in Safford United School District v. Redding (08-479) made clear that, while the Court seriously frowns on strip searches of students, those have not been forbidden totally; it depends, in other words.

The other constitutional rule is that searches of public school students’ backpacks, notebooks, other belongings, outer clothing and pockets are generally allowed if they are based on “reasonable suspicion.” That remains as it has for a quarter-century, but with a small amount of refinement, the exact scope of which is not quite clear.

Justice Clarence Thomas, who cast the lone dissenting vote on the constitutional rules, denounced them as “vague and amorphous.” Whether they actually lack specificity to that degree, school officials very likely will need some legal sophistication to know just what they mean in practice.

Another part of the ruling — disappointing to students who have already been subjected to strip searches — is that Thursday’s decision only applies to future searches, so the Constitution does not provide them a remedy. By a vote of 7-2, the Court said there has been enough confusion about what the Constitution meant for strip searches that school officials could not have been expected to know that they were invalid, so they have immunity. Justices Ruth Bader Ginsburg and John Paul Stevens dissented on that point, saying school officials have been on notice since 1985 (the Court’s decision in New Jersey v. T.L.O.) that they could not go as far as requiring a strip search.

Thus, the ruling will apply only to any strip search that is made at a public school from here on. (The decision has no application for private schools’ search policies; they are not covered by the Constitution’s guarantee of privacy under the Fourteenth Amendment.)

Among students losing out because of the lack of retroactive effect of the decision was the young woman, Savana Redding of Safford, Ariz., who at age 13 (six years ago) had been required to take off all of her clothes except her bra and panties, and was required to pull those garments out so that female school officials could check to see if she had stashed prescription pills next to her body. The fact that the Court used her case to establish that such searches were highly suspect under the Fourth Amendment provided no remedy for her, because of the separate immunity finding.

The Court’s immunity decision, however, was applied only to three specific officials of Savana’s school. The Court said it was not deciding whether the school district had any liability, leaving that to lower courts to examine.

Prior to this decision, the Court had issued a number of rulings on student privacy, but had never confronted a physical search that went as far as that commanded of Savana Redding.

It has been true, since the T.L.O. ruling in 1985, that school officials had more authority to search students than police officers would have to search someone suspected of crime. Police, of course, need “probable cause.” For students, the Court said, it would be enough if officials had a “reasonable suspicion” that a student had drugs, cigarettes, or something else they were forbidden to have, in order to search their locker or personal belongings.

Justice Souter sought to elaborate somewhat on the difference between what police need to suspect before they may search, and what school officials need. Police, he said, may search only if what they know creates “a fair possibility or a substantial chance” that a search will turn up evidence of a crime. School officials, by contrast, may search if what they know creates only “a moderate chance of finding evidence of wrongdoing” — that is, evidence of violating school rules, such as a ban on having drugs (even medicines).

These judgments, the Court indicated, are very much keyed to the specific facts of each case. So, applying the rule it had spelled out precisely (with some new elaboration), the Court found that officials had the authority to search Savana’s backpack and outer clothing.

But then it turned to apply its new rule, the one that it fashioned for strip searches — illustrated in this case by the requirement that Savana, standing in a school office in her underwear, was required to pull out her bra and underpants for inspection. The Court turned aside the school officials’ claim that they actually did not see any part of the girl’s breasts and pelvic area. The constitutionality, it said, “does not depend upon who was looking and how much was seen.”

What Savana was required to do that had constitutional significance, Souter wrote, was to expose her private areas “to some degree,” and that kind of search is “categorically distinct” under the Constitution.

In order to justify that kind of intrusion, the Court then said, school officials must have some evidence that the drug or other item they suspect is being hidden by the student is dangerous in terms of its “power or quantity,” and must have some reason to suppose that the forbidden item is hidden in a student’s underwear. The school officials lacked both of those kinds of information in this search, Souter concluded. “We think that the combination of these deficiencies was fatal to finding the search reasonable,” he wrote.

The wording that it was the combination that made this search invalid seemed to suggest that, if one of the factors was present but not the other, the search might not have violated the Constitution — for example, if the drugs were dangerous enough, but officials had no specific reason to think they would be hidden in underwear, a strip search might still have been valid. At least, perhaps, the Court meant to indicate that it was not deciding whether the presence of only one factor would allow the search.

Elsewhere in the opinion, Souter said that “the indignity” of a strip search such as the one at issue in this case did not “outlaw it,” but did implicate whether it was reasonable to go forward with such an intrusive inspection.

Thus, the validity of future strip searches may have to be resolved case-by-case, rather than having been resolved by what the Court decided Thursday.

Merits Case Pages and Archives

On Monday the Court issued orders from its February 27 Conference. Two new cases were granted. On Tuesday the Court announced its decision in Direct Marketing v. Brohl. This is the second week of the February sitting.

“I think always the humor was a means to an end. And the end is, to help folks who don’t live in this world understand why it matters.” Dahlia Lithwick covers the Supreme Court and writes about law more broadly for Slate.com. In this six-part interview, Ms. Lithwick discusses law school, practicing law, and how […]